Citation Nr: 1037464
Decision Date: 10/01/10 Archive Date: 10/12/10
DOCKET NO. 06-28 363A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for the cause of the Veteran's
death.
REPRESENTATION
Appellant represented by: Oklahoma Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Pansiri, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1968 to April 1971
and June 1971 to February 1978, during the Vietnam Era and
peacetime. He died in March 2005. The appellant is his
surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a November 2005 rating decision, with notice of
such decision provided to the appellant in December 2005, issued
by the Department of Veterans Affairs (VA) Regional Office (RO)
in Muskogee, Oklahoma, which denied service connection for the
Veteran's cause of death.
In April 2008, the appellant testified before the undersigned
Veterans Law Judge via video conference. A copy of the hearing
transcript is of record and has been reviewed.
In September 2008, the Board remanded this claim for additional
development, to include affording the Veteran proper notice under
the Veterans Claims Assistance Act of 2000 (VCAA), specifically
the notice required under Hupp v. Nicholson, 21 Vet. App. 342
(2007), obtaining outstanding VA and private treatment records,
and obtaining a medical opinion regarding whether the Veteran's
cause of death is related to his military service, to include his
service-connected disabilities and residuals of disabilities
sustained during an in-service motor vehicle accident. The
appeal has now been returned for further review by the Board. As
will be discussed herein, the Board finds that the agency of
original jurisdiction (AOJ) substantially complied with the
September 2008 remand orders and no further action is necessary
in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106
(2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand
not required under Stegall v. West, 11 Vet. App. 268 (1998),
where the Board's remand instructions were substantially complied
with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).
FINDINGS OF FACT
1. The death certificate reflects that the Veteran died in March
2005 and lists the immediate cause of death as atherosclerotic
cardiovascular disease. Chronic obstructive pulmonary disease
(COPD) and traumatic obstructive sleep apnea were listed as
significant conditions contributing to the Veteran's death, but
not resulting in the underlying cause of death.
2. At the time of the Veteran's death, service connection was in
effect for paranoid-type schizophrenia, evaluated as 50 percent
disabling; fracture of mandible with right temporomandibular
joint (TMJ) dysfunction, evaluated as 10 percent disabling; right
chin scar, evaluated as 10 percent disabling; fracture of orbits,
evaluated as noncompensable; fracture of nose, evaluated as
noncompensable; and fracture of maxilla and zygoma, evaluated as
noncompensable.
3. The preponderance of the evidence is against a finding that
the Veteran's service-connected psychiatric, right chin scar,
and/or various fracture disabilities either caused or contributed
substantially or materially to cause his death.
4. A chronic cardiovascular disorder, to include atherosclerotic
cardiovascular disease, or respiratory disorder, to include COPD
and/or traumatic obstructive sleep apnea, was not demonstrated in
service or for many years thereafter. There is no competent
medical evidence of record demonstrating a relationship between
the cause of the Veteran's death and his active military service,
to include residuals of disabilities sustained during an in-
service motor vehicle accident.
CONCLUSION OF LAW
A disability incurred in or aggravated by service, a disability
that may be presumed to have been incurred in service, or a
disability that is otherwise related to service did not cause or
contribute substantially or materially to the cause of the
Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310, 5103,
5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307,
3.309, 3.312 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA's Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§
3.102, 3.159, 3.326(a) (2009).
Upon receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his or
her representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper notice from VA must
inform the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide.
Proper VCAA notice must be provided to a claimant prior to the
initial unfavorable decision on the claim. Pelegrini v.
Principi, 18 Vet. App. 112, 119-20 (2004).
In the context of a claim for DIC benefits, which includes a
claim of service connection for the cause of the Veteran's death,
section 5103(a) notice must be tailored to the claim. The notice
should include (1) a statement of the conditions, if any, for
which a Veteran was service connected at the time of his or her
death; (2) an explanation of the evidence and information
required to substantiate a DIC claim based on a previously
service-connected condition; and (3) an explanation of the
evidence and information required to substantiate a DIC claim
based on a condition not yet service-connected. Hupp v.
Nicholson, 21 Vet. App. 342, 352-53 (2007).
In the instant case, the appellant was advised by an August 2005
letter of the evidence and information necessary to substantiate
her claim as well as hers and VA's respective responsibilities in
obtaining such evidence and information. Specifically, the
August 2005 letter informed her that, to substantiate her claim,
the evidence must show that the Veteran died while on active duty
or he died from a service-connected injury or disease.
Additionally, such letter advised the appellant that the evidence
needed to show a reasonable probability that the condition that
contributed to the Veteran's death was caused by injury or
disease that began during service. Although the August 2005
letter did not provide her with a statement of the condition(s)
for which the Veteran was service-connected at the time of his
death in accordance with Hupp, or inform her of the information
and evidence necessary to establish an effective date if the
benefit were granted, the VA sent March 2008, November 2008, and
February 2009 letters informing the appellant of the above.
Therefore, as the AOJ provided the Veteran corrective VCAA notice
consistent with Hupp, the Board finds that the AOJ substantially
complied with the September 2008 remand orders and no further
action is necessary in this regard. See D'Aries, supra.
Although complete notice was not sent before the initial AOJ
decision in this matter, the Board finds that this error was not
prejudicial to the appellant because the actions taken by VA
after providing the notice have essentially cured the error in
the timing of notice. In this case, subsequent to the March
2008, November 2008, and February 2009 VCAA letters, the RO
readjudicated the claim by way of a July 2010 Supplemental
Statement of the Case (SSOC), at which time the appellant was
given an additional 60 days to respond. The appellant has been
afforded a meaningful opportunity to participate effectively in
the processing of her claims and given ample time to respond.
The information submitted by the appellant, including a March
2005 Report of Investigation by Medical Examiner, exemplifies the
appellant's knowledge of what she had to demonstrate in order to
acquire service connection for the Veteran's cause of death. For
these reasons, it is not prejudicial to the appellant for the
Board to proceed to finally decide this appeal as the notice
error did not affect the essential fairness of the adjudication
of the claim.
The Board observes that the appellant has been provided with
every opportunity to submit evidence and argument in support of
her claims and to respond to VA notices. Therefore, to decide
the appeal would not be prejudicial error to the appellant.
Thus, the Board finds that any error in the timing of the
appellant's notification of the VCAA constituted harmless error.
VA must also make reasonable efforts to assist the claimant in
obtaining evidence necessary to substantiate the claim for the
benefit sought, unless no reasonable possibility exists that such
assistance would aid in substantiating the claim. 38 U.S.C.A.
§ 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, the Veteran's
service treatment records (STRs); post-service treatment records,
including VA and private medical records; Social Security
Administration (SSA) records; July 2006 and June 2010
Compensation and Pension (C&P) Examination Reports with opinions;
and statements submitted by the Veteran and the appellant have
been associated with the claims file. Therefore, as the AOJ
obtained the Veteran's outstanding VA and private treatment
records and a medical opinion regarding whether the Veteran's
cause of death is related to his military service, to include his
service-connected disabilities and residuals of disabilities
sustained during an in-service motor vehicle accident (see June
2010 C&P Examination Report), the Board finds that the AOJ
substantially complied with the September 2008 remand orders and
no further action is necessary in this regard. See D'Aries,
supra.
As noted, in April 2008, the appellant testified before the
undersigned Veterans Law Judge via video conference. A copy of
the hearing transcript is of record and has been reviewed.
The appellant did not provide any information to VA concerning
available relevant treatment records that she wanted the RO to
obtain for her that have not been requested or obtained.
Further, the VA obtained a VA medical opinion in order to
determine whether the Veteran's cause of death is related to his
military service, to include his service-connected disabilities
and residuals of disabilities sustained during an in-service
motor vehicle accident. See June 2010 C&P Examination Report.
Thus, the Board finds that VA has fully satisfied the duty to
assist. In the circumstances of this case, additional efforts to
assist or notify the appellant in accordance with the VCAA would
serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App.
540, 546 (1991) (strict adherence to requirements of the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a particular
case; such adherence would result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the Veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the Veteran are to be avoided). VA
has satisfied its duty to inform and assist the appellant at
every stage in this case, at least insofar as any errors
committed were not harmful to the essential fairness of the
proceeding. Therefore, the appellant will not be prejudiced as a
result of the Board proceeding to the merits of her claims.
Merits of the Cause of Death Claim
When a Veteran dies from a service-connected disability, the
Secretary shall pay DIC for such Veteran's surviving spouse,
children or parents. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.312(a) (2009). The death of a Veteran will be considered as
having been due to a service-connected disability when the
evidence establishes that such disability was either the
principal or a contributory cause of death. Id. A service-
connected disability will be considered as the principal
(primary) cause of death when such disability, singly or jointly
with some other condition, was the immediate or underlying cause
of death or was etiologically related thereto. 38 C.F.R.
§ 3.312(b). A contributory cause of death is inherently one not
related to the principal cause. 38 C.F.R. § 3.312(c)(1). In
determining whether the service-connected disability contributed
to death, it must be shown that it contributed substantially or
materially; that it combined to cause death; that it aided or
lent assistance to the production of death. Id. It is not
sufficient to show that it casually shared in producing death,
but rather it must be shown that there was a causal connection.
Id.
Generally, minor service-connected disabilities, particularly
those of a static nature or not materially affecting a vital
organ, would not be held to have contributed to death primarily
due to unrelated disability. 38 C.F.R. § 3.312(c)(2). In the
same category, there would be included service-connected diseases
or injuries of any evaluation (even 100 percent evaluations) but
of a quiescent or static nature involving muscular or skeletal
functions and not materially affecting other vital body
functions. Id.
Service-connected diseases involving active processes affecting
vital organs should receive careful consideration as a
contributing cause of death from the viewpoint of whether there
were resulting debilitating effects and general impairment of
health to
an extent that would render the person materially less capable of
resisting the effects of the disease primarily causing death.
38 C.F.R. § 3.312(c)(3).
Service connection may be established for disability resulting
from personal injury suffered or disease contracted in the line
of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Regulations
provide that service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was incurred
in service. 38 C.F.R. § 3.303(d).
Where a Veteran served for at least 90 days during a period of
war or after December 31, 1946, and manifests certain chronic
diseases, such as cardiovascular-renal disease, to include
hypertension, to a degree of 10 percent within one year from the
date of termination of such service, such disease shall be
presumed to have been incurred or aggravated in service, even
though there is no evidence of such disease during the period of
service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of a
matter, the Secretary shall give the benefit of the doubt to the
claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
In this case, the death certificate reflects that the Veteran
died in March 2005 at the age of 55 and lists the immediate cause
of death as atherosclerotic cardiovascular disease. COPD and
traumatic obstructive sleep apnea were listed as significant
conditions contributing to the Veteran's death, but not resulting
in the underlying cause of death. An autopsy was not performed.
The appellant contends that the Veteran's service-connected
disabilities, specifically various fracture disabilities
(fracture of mandible with right TMJ dysfunction, fracture of
orbits, fracture of nose, and fracture of maxilla and zygoma),
sustained during an in-service motor vehicle accident in 1975 led
to the development of sleep apnea and/or COPD which contributed
or lent to his death. See September 2006 "Appeal to the
Board," VA Form 9; April 2008 Board Hearing Transcript. Upon
review of the evidence of record, the Board finds that the
appellant's contention is without merit.
In this regard, the Veteran's claims file contains no evidence
that he was service-connected for any respiratory disability, to
include COPD and/or sleep apnea. In fact, the Veteran was only
service-connected for paranoid-type schizophrenia, fracture of
mandible with right TMJ dysfunction, right chin scar, fracture of
orbits, fracture of nose, and fracture of maxilla and zygoma.
See January 1999 Rating Decision. In a February 2003 rating
decision, the Veteran was denied service connection for sleep
apnea on a direct and secondary basis because the disability was
not incurred in or aggravated by service and there was no
relationship between the sleep apnea and the fractures sustained
in the in-service motor vehicle accident, including fracture of
mandible with right TMJ dysfunction. See February 2003 Rating
Decision. As such, his only service-connected disabilities were
paranoid-type schizophrenia, fracture of mandible with right TMJ
dysfunction, right chin scar, fracture of orbits, fracture of
nose, and fracture of maxilla and zygoma; and there is no
evidence that such disabilities either caused or contributed
substantially or materially to cause his death. In this regard,
the Board notes that the psychiatric and/or various fracture
disabilities are minor service-connected disabilities of a
quiescent or static nature, not materially affecting a vital
organ (in this case, the heart or lungs). Additionally, the
evidence shows that the Veteran died primarily due to unrelated
disabilities involving cardiovascular and respiratory disorders.
Therefore, the Board finds that the Veteran's paranoid-type
schizophrenia, fracture of mandible with right TMJ dysfunction,
right chin scar, fracture of orbits, fracture of nose, and
fracture of maxilla and zygoma, did not cause or contribute
substantially or materially to cause his death. See 38 C.F.R.
§ 3.312(c)(2).
Furthermore, the evidence of record does not reflect that the
disabilities which caused the Veteran's death (atherosclerotic
cardiovascular disease, COPD, and traumatic obstructive sleep
apnea) were incurred in or aggravated by his active military
service. The Veteran's STRs are negative for complaints,
treatment, or diagnoses of any chronic cardiovascular disorder
and/or respiratory disorder, to include atherosclerotic
cardiovascular disease and/or traumatic obstructive sleep apnea.
There is also no indication that these disabilities are related
to the Veteran's in-service motor vehicle accident and the
various fracture disabilities he sustained as a result of such
accident. The Board acknowledges that, in an April 1975 to July
1975 Narrative Summary, the examiner noted that the Veteran had
multiple fractures of the maxilla from a motor vehicle accident
and underwent a tracheotomy and was assessed trancheobronchitis.
However, there were no respiratory complaints or complications
noted. An August 1977 Chronological Record of Medical Care
indicates that the Veteran has a past medical history of
traumatic facial fractures, and he complained of no other medical
problems. He was diagnosed with early COPD secondary to smoking.
See August 1977 Chronological Record of Medical Care. Further
review of the Veteran's STRs is negative for complaints,
treatment, and/or diagnoses of any respiratory disabilities, to
include COPD and/or sleep apnea. Additionally, examinations of
the nose, sinus, lungs, and chest were normal upon separation.
See April 1977 Separation Examination Report.
Post-service, the first indication of any respiratory disability
is noted in a November 2001 Chest X-Ray Report from the Sparks
Regional Medical Center, which indicates complaints of shortness
of breath and the heart was noted as normal, dated approximately
23 years post-service. The first indication of any respiratory
disability, to include COPD and/or sleep apnea, is noted in a
November 2001 private treatment record from Sparks Regional
Medical Center, noting treatment for exacerbation of COPD, and a
September 2002 private treatment record from Arkansas Sleep
Disorder Diagnostic Center, noting a diagnosis of severe
obstructive sleep apnea, dated approximately 23 and 34 years
post-service, respectively. In this regard, the Board finds
that, as the record fails to show that the Veteran manifested any
cardiovascular and/or respiratory disability, to include
atherosclerotic cardiovascular disease, COPD, and/or traumatic
obstructive sleep apnea, within the one year following his
service discharge in February 1978, presumptive service
connection is not warranted. 38 U.S.C.A. §§ 1101, 1112;
38 C.F.R. §§ 3.307, 3.309.
Moreover, there is no medical evidence demonstrating a
relationship between the disabilities causing the Veteran's death
(atherosclerotic cardiovascular disease, COPD, and/or traumatic
obstructive sleep apnea) and his service, to include residuals of
disabilities sustained during an in-service motor vehicle
accident.
In this regard, the Board has considered the March 2005 Report of
Investigation by Medical Examiner, in which the medical examiner
implies that his atherosclerotic cardiovascular disease, COPD,
and traumatic obstructive sleep apnea are in some way related to
the Veteran's April 1975 in-service motor vehicle accident.
Although the medical examiner did not provide a clear opinion as
to whether the Veteran's atherosclerotic cardiovascular disease,
COPD, and/or traumatic obstructive sleep apnea were related to
the in-service motor vehicle accident and merely implies a
relationship between the Veteran's cause of death and his
service, the Board construes the March 2005 Report of
Investigation by Medical Examiner as evidence weighing in the
appellant's favor. However, the claims folder also contains a
negative opinion. In this regard, after review of the claims
folder including the Veteran's STRs and various post-service
private and VA medical records, a June 2010 VA physician opined
that the Veteran's "the Veteran's service-connected disabilities
did not cause, contribute substantially or materially to, or
hasten the Veteran's death," and "no service-connected
pathology caused general impairment of health such that the
Veteran was materially less capable of resisting the effects of
whatever disease or event was the primary cause of death."
Further, the Veteran's "sleep apnea condition was less likely as
not permanently aggravated or a result of any in-service injury
including residuals of the April 1975 facial injuries and was at
least as likely as not as a result of tobacco smoking, age
related risk, and/or risk in the general population." The VA
physician also opined that the Veteran's "cardiac disease was
less likely as not permanently aggravated or a result of sleep
apnea and/or any service-connected disability and was as least as
likely as not a result of tobacco smoking, alcohol abuse, age-
related factors, and/or risk of cardiac disease in the general
public." See June 2010 C&P Examination Report. The rationale
for the negative opinion was that the Veteran had a history of
smoking/tobacco abuse and alcohol abuse, medical literature
revealing a correlation between smoking/tobacco abuse and alcohol
abuse and respiratory and heart disabilities, the lack of
treatment for any respiratory and/or heart disability for many
years after service, and the no in-service complaints, treatment,
and/or diagnoses of any respiratory and/or cardiovascular
disabilities in-service, except for a notation of early COPD
secondary to smoking in August 1977. See id. On review, the
Board gives greater probative weight to the June 2010 VA medical
opinion, as opposed to the March 2005 private medical examiner
opinion, for the following reasons.
The June 2010 VA examiner had the benefit of review of the claims
folder, including the Veteran's post-service treatment records,
which revealed a history of tobacco abuse (see October 2004
Treatment Note, Fayetteville VAMC), and STRs revealing no
complaints, treatment, and/or diagnoses of any respiratory and/or
cardiovascular disabilities following the Veteran's in-service
motor vehicle accident. Although review of the claims file alone
does not automatically render the examiner's opinion competent or
persuasive (see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304
(2008)), review of the claims file in this case included evidence
weighing against the appellant's claim that the Veteran's
service-connected disabilities contributed substantially or
materially to his death; therefore, the private medical
examiner's opinion is considered less informed. The Board notes
that the private medical examiner indicates that it was unknown
whether tobacco contributed to the Veteran's death. See March
2005 Death Certificate. Further, the private physician gives no
basis for his opinion nor a statement of the evidence he relied
on in making his opinion. The Court of Appeals for Veterans
Claims has held on a number of occasions that a medical opinion
premised upon an unsubstantiated account is of no probative
value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 460 (1993);
Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown,
5 Vet. App. 229, 233 (1993). Additionally, the evidence of
record as discussed above weighs against the appellant's service
connection for cause of death claim. Such evidence constitutes
negative evidence tending to disprove the assertion that the
Veteran's service-connected disabilities contributed
substantially or materially to his death. See Forshey v. West,
12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi,
284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting evidence to disprove
the existence of an alleged fact).
A complete review of the medical evidence of record, including
VA, private, and SSA records, is negative for any other opinion
regarding a relationship between the Veteran's cause of death and
his service, to include residuals of various disabilities
incurred during the in-service motor vehicle accident.
In making all determinations, the Board must fully consider the
lay assertions of record. Lay assertions may serve to support a
claim for service connection by establishing the occurrence of
observable events or the presence of disability or symptoms of
disability subject to lay observation. 38 U.S.C.A. § 1153(a)
(West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson,
492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson,
451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as
potentially competent to support presence of disability even
where not corroborated by contemporaneous medical evidence). A
layperson is competent to report on the onset and continuity of
his current symptomatology. See Layno v. Brown, 6 Vet. App. 465,
470 (1994) (a veteran is competent to report on that of which he
or she has personal knowledge); Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992).
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has clarified that lay evidence can be
competent and sufficient to establish a diagnosis or etiology
when (1) a lay person is competent to identify a medical
condition; (2) the lay person is reporting a contemporaneous
medical diagnosis, or (3) lay testimony describing symptoms at
the time supports a later diagnosis by a medical professional.
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
The Board acknowledges that the appellant has contended on her
own behalf that the Veteran's cause of death is related his
military service, specifically she contends that after the
Veteran's April 1975 motor vehicle accident, the Veteran had
trouble sleeping for nearly 30 years but was not yet diagnosed
with sleep apnea until 2002. See also November 2005 Type-Written
Statements from the Veteran's Brother and Fellow Service Member
(also noting sleep and respiratory problems as early as 1975).
The Veteran and those witnessing his symptoms first-hand are
competent to report on the Veteran's symptomatology during
service and after service. However, such statements are not
credible because, as discussed above, review of the evidence of
record reveals that the Veteran did not seek treatment for his
complaints until many years after service, and in addition,
significantly, the June 2010 C&P Examination Report indicates
that the Veteran's sleep apnea disability was less likely as not
permanently aggravated or a result of any in-service injury
including residuals of the April 1975 facial injuries and was at
least as likely as not as a result of tobacco smoking and other
factors.
Therefore, the Board finds that a chronic cardiovascular
disorder, to include atherosclerotic cardiovascular disease, or
respiratory disorder, to include COPD and/or traumatic
obstructive sleep apnea, were not present in service or for many
years thereafter, and there is no competent evidence relating
such disabilities to service. In addition, the preponderance of
the evidence is against a finding that the
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Veteran's disabilities were incurred in or aggravated by service,
had any significant adverse effect on the events leading to the
Veteran's death, or otherwise contributed substantially or
materially to his demise.
The Board has considered the applicability of the benefit of the
doubt doctrine. However, the preponderance of the evidence is
against the appellant's claim of entitlement to service
connection for the cause of the Veteran's death and, as such,
that doctrine is not applicable in the instant appeal and her
claim must be denied. 38 U.S.C.A. § 5107.
ORDER
Entitlement to service connection for the cause of the Veteran's
death is denied.
____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs